US v. Samuel Horton, II, No. 11-4516 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4516 UNITED STATES OF AMERICA, Plaintiff Appellee, v. SAMUEL LEE HORTON, II, Defendant Appellant. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., Senior District Judge. (6:09-cr-01311-HMH-1) Argued: September 18, 2012 Before TRAXLER, Judges. Chief Judge, Decided: and DIAZ and November 19, 2012 THACKER, Circuit Affirmed by unpublished per curiam opinion. ARGUED: David Bruce Betts, Columbia, South Carolina, for Appellant. Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Samuel Lee Horton, II appeals his sentence for making a false statement in a passport application in violation of 18 U.S.C. § 1542. Specifically, Horton challenges the district court s decision to vary from the guidelines and impose a 120month prison sentence, the statutory maximum for the offense. We affirm. I. A. Horton and his wife divorced in February 2009. The divorce decree granted his wife custody of their two minor children and Horton visitation final, Horton application daughter. for rights. falsified the The his purpose same wife s of day the signature obtaining a divorce on a passport became passport for his In April 2009, Horton picked up his then three-year- old daughter for what he told his ex-wife would be a nine-day trip to Disney World in Florida. Thailand, arriving on April 9, 2009. Instead, he took her to Law enforcement officials located and apprehended Horton in June 2010, fourteen months later, and returned him and his daughter to the United States. B. Horton pleaded guilty to a single-count indictment charging him with making a false statement in a passport application in 2 violation of 18 U.S.C. § 1542. Horton s presentence report ( PSR ) determined that the sentencing guideline for passport fraud, U.S.S.G. guideline § 2L2.2, applicable U.S.S.G. § 2J1.2. to required a cross-reference International Parental to the Kidnapping, The cross-reference resulted in a higher base offense level and the PSR calculated a total offense level of 16 that, combined with Horton s category II criminal history, resulted in an advisory guideline range of twenty-four to thirty months imprisonment. The statutory maximum prison sentence for violation of the international parental kidnapping statute, 18 U.S.C. § 1204, was thirty-six months. The statutory maximum sentence for making a false statement in a passport application, the charge to which Horton pleaded guilty, was 120 months. Neither party objected to the PSR. At Horton s sentencing hearing, the government moved for a variance or departure above the top of the advisory guideline range. The district court granted the motion because the guidelines just do not fit . . . what has occurred here. (J.A. 47.) In particular, the district court relied on the following circumstances: (1) Horton fled with his daughter and made no contact with his ex-wife for several weeks, causing the child s family to wonder whether she was even alive, (2) he relocated the child to Thailand, on the other side of the world, for fourteen months and had no intention of reuniting her with 3 her family, (3) he taunted his ex-wife by email, (4) he locked the child in her bedroom so that she would not escape, (5) he and a male companion sexually victimized the child, (6) the child was reunited with her family only due to a prolonged, diligent law enforcement campaign to locate her and apprehend Horton, suffer and (7) expert testimony established lifelong trauma and prolonged need that she would counseling. In addition, the district court considered Horton s contempt for the law (evidenced by his frequent criminal violations and violations of orders issued by the family court), his likelihood of further victimizing his daughter and her family, and the need to promote sentenced prison, range. deterrence Horton four to times for the the this type statutory high end of crime. maximum of his of The 120 court months applicable in guideline This appeal followed. II. Horton contends that the district court failed to provide a sufficient justification for from the guideline range. its substantial upward variance He argues that the reasons relied on by the district court for imposing the 120-month prison sentence primarily involve conduct related to international parental kidnapping, a crime which carries a statutory maximum sentence of thirty-six months. Thus, in 4 Horton s view, the district court erred in arriving at a sentence that is more than three times the statutory maximum he would have faced for parental kidnapping. Appellant s Br. at 7. We review the district court's sentence for reasonableness under a deferential abuse-of-discretion standard. United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation omitted). In assessing whether a sentencing court has properly applied the Guidelines, we review factual findings for clear error and legal conclusions de novo. United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). An out-of-guidelines procedural and sentence substantive must be reviewed reasonableness. States, 552 U.S. 38, 51 (2007). Gall for v. both United A sentence may be procedurally unreasonable, for example, if the district court provides an inadequate statement of reasons or fails to make a necessary factual finding. United States v. Moreland, 437 F.3d 424, 434 (4th Cir. 2006), overruled on other grounds by Gall, 552 U.S. 38. On the other hand, [a] sentence may be substantively unreasonable if the court relies on an improper [sentencing] factor or rejects policies Sentencing Commission. articulated by Congress or the Id. Our review of Horton s sentence should take into account the totality of the circumstances in determining whether the district court s justification for imposing an out-of-guidelines 5 sentence is sufficiently compelling to support the degree of the variance. Gall, 552 U.S. at 50-51. [C]ommon sense dictates that a major departure should be supported by a more United States v. significant justification than a minor one. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008) (internal quotation marks omitted). We conclude discretion extraordinary above, the district imposing in that the statutory facts support a found by sentence advisory guideline range. the court did maximum district significantly not abuse sentence. court, in its The summarized excess of the Horton s contention that his sentence would have been capped at thirty-six months had the government charged him with international parental kidnapping is beside the point. A defendant may be charged and sentenced under the more punitive violated. (1979). passport of two or more statutes that the defendant has See United States v. Batchelder, 442 U.S. 114, 125 And in establishing a 120-month maximum sentence for fraud, Congress clearly contemplated that the circumstances of certain cases would be such that the offender deserves to be punished up to the maximum term. the district court that this is such a case. We agree with Congress s policy choice in setting the respective statutory maximum sentences for the offenses at issue here, which it is not our place to question, also serves to dispose of Horton s argument that a 6 sentence above the statutory maximum for international parental kidnapping creates an unwarranted sentencing disparity under 18 U.S.C. § 3553(a)(6). * III. We affirm the judgment of the district court. AFFIRMED * Horton also argues that the district court s sentence should not have been influenced by the fact that Horton was not going to face state criminal charges. In our view, however, any error was harmless given the other good and substantial reasons supporting the district court s sentence. 7
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